IN THE CASE OF:	  

		BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120007430 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests the removal of the Officer Evaluation Report (OER) covering the period 19 June 2009 to 4 November 2009 from his Official Military Personnel File (OMPF).  

2.  The applicant states, in effect, that the OER is unjust because the negative comments by his rating chain were disproportionate to the seriousness of his error.  He goes on to state that his actions never affected his job performance or National Security or the reputation of his office.  He also states that the OER was given for his out-of-work personal error and involved his having a relationship with a woman while he was at the embassy in Slovakia and whom he later married in January 2011.  He goes on to state that at the time he was having marital discord with his wife that was related to issues that pre-dated his assignment and ultimately led to divorce.  He continues by stating that when his supervisors learned of the relationship he answered all of their questions honestly and was relieved of his duties.  He further states he received a general officer memorandum of reprimand (GOMOR) which the imposing general officer filed locally.  He states he made an error in judgment and acknowledges the relationship was inappropriate and he believes that the imposing commanding general understood that and he believes that the same rationale should be applied to his OER.  Accordingly, it should be removed from his OMPF.    

3.  The applicant provides a copy of his appeal to the U.S. Army Human Resources Command (HRC), a copy of a letter of support, a copy of a by-name request for his assignment to Afghanistan, a copy of his Board of Inquiry with supporting documents, and a copy of the contested OER.
CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a U.S. Army Reserve infantry second lieutenant on 22 December 1989 and entered active duty on 22 May 1990.  He remained on active duty and was promoted to the rank of lieutenant colonel on   1 January 2007.

2.  The applicant was serving as a Defense and Army Attaché in the American Embassy in Bratislava, Slovakia when he received a Relief for Cause OER covering the period 16 July 2008 to 8 January 2009.

3.  In Part IV, under Army Values, his rater gave him “NO” ratings under “Honor” and “Integrity.”  In Part V, under Performance and Potential Evaluation, his rater gave him a rating of “Unsatisfactory Performance – Do Not Promote.”  His rater commented that the applicant had performed his duties well; however, the Director, Defense Intelligence Agency (DIA) relieved him for cause after learning that he engaged in an inappropriate personal relationship with a foreign national female.  His actions reflect a failure to adhere to the seven Army core values and to steadfastly comply with the high moral standards expected of a field grade officer serving in a sensitive diplomatic assignment abroad.  He also stated that the applicant’s inappropriate conduct in a sensitive diplomatic assignment calls into question his potential for promotion.

4.  In part VII, the applicant’s senior rater (SR) gave him a “Do Not Promote” rating and placed him below center of mass – retain on his profile.  His SR commented that the applicant’s displayed personal conduct and lack of integrity were not compatible with attaché duty and Army Values and indicated that he was relieved from duty and returned to service for cause.   

5.  The applicant was returned to Fort Myer, Virginia and the Commanding General (CG) of the Military District of Washington (MDW) issued the applicant a GOMOR.  On 9 July 2009, the CG directed that the GOMOR be filed locally for a period of 3 years.

6.  On 1 June 2011, a Field Board of Inquiry was completed and recommended that the applicant be retained in service.  The applicant deployed to Afghanistan from June 2011 to May 2012.

7.  Meanwhile, on 16 August 2011 he appeal the contested OER to the Officer Special Review Board (OSRB) requesting the removal of the contested OER from his OMPF or as an alternative, that the OER be altered to reflect “Yes” ratings for “Honor and Integrity,” “Outstanding Performance,” “Best Qualified” for promotion, and a “Center of Mass” rating.
8.  After reviewing the available evidence, the OSRB determined that the applicant had failed to show clear and convincing evidence of a material error, inaccuracy or injustice and on 19 January 2012, the OSRB voted unanimously to deny his appeal.

9.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures and serves as the authority for the preparation of the OER.  It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly designated rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

10. Army Regulation 623-3 also provides that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant requested removal of an OER covering the period     19 June 2009 to 4 November 2009 from his OMPF, it appears he was referring to his Relief for Cause OER covering the period 16 July 2008 to 8 January 2009.

2.  The applicant was relieved for cause for having an inappropriate personal relationship with a foreign national female while serving as a foreign area officer in Slovakia, a relationship he admits was inappropriate.  Although the applicant contends that he should not have been relieved and given a negative OER because they were disproportionate or too harsh for one mistake or error in judgment, it appears that the relieving official and his rating chain did not view the incident as lightly as he did. 

3.  Accordingly, after considering the investigations conducted and the circumstances involved at the time, the chain of command decided that he should be relieved of his duties. 
4.  While the applicant does not agree with the decision of his chain of command, he has failed to show through convincing evidence that the contested report does not reflect the objective evaluation of his rating chain at the time and that it does not properly reflect the rating chain’s evaluation of his performance and potential during the period in question.

5.  Accordingly, the contested report appears to represent a fair, objective, and valid appraisal of his performance and potential during the period in question.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   __x_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20120007430





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ABCMR Record of Proceedings (cont)                                         AR20120007430



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